On February 18, 1975, three armed men robbed the Trap Falls office of theConnecticut National Bank in Shelton, Connecticut, and fled with $2,034.Tellers, Retta Mondulick and Robert Welch, were present in the bank at thetime of the robbery, and the entire 84-second incident was captured on film bya bank surveillance camera that was activated by Mrs. Mondulick when shesaw the first man enter the bank.

Appellant Robinson came under suspicion as a result of an informant's tip. He

surrendered voluntarily after learning that the FBI had, with the consent of hiswife, searched his apartment and taken his coat, which resembled a coat wornby one of the bank robbers.

At Robinson's first trial, the jury was unable to reach a verdict, and JudgeNewman declared a mistrial. At a second jury trial before Judge Zampano,

Robinson was found guilty of bank robbery in violation of 18 U.S.C.

2113(a) and (b). Because certain erroneous evidentiary rulings prejudicedRobinson's alibi defense, we reverse his conviction.I. The Third Man4

There is no dispute over the identity of two of the three bank robbers. One wasLuther Fleming, who is apparently still at large. The other was David Tate, whopled guilty and was given a ten year sentence. 1 Tate did not testify atRobinson's first trial.

On the day after the bank robbery, the FBI took a bank surveillance photographto the Bridgeport jail and enlisted the aid of Correctional Officer George Maherand his staff in identifying the third man involved in the robbery. Maher wasprepared to testify that, based on an examination of their files, he and his staffconcluded that the individual in the picture resembled one Eli Turner. If JudgeZampano had admitted the evidence of the resemblance to Turner, thegovernment would have stipulated that Bridgeport Police Captain AnthonyFabrizi, if called, would testify that Eli Turner was suspected of committingtwo local armed robberies in early February, 1975, and was still at large. JudgeZampano excluded Maher's testimony because he was concerned that itsadmission would open the door to testimony by numerous witnesses that thebank surveillance photographs either did or did not resemble Robinson. Onappeal, Robinson claims that the exclusion of the Maher/Fabrizi testimony waserror. We agree.

The central issue in this case was one of identification. The governmentmaintained that the third man in the bank was Robinson, and Robinson claimedthat it was not. Robinson's claim was more plausible than it might at firstappear. The photographic identification procedures employed by the FBI hadbeen mildly suggestive, and the defense argued that the in-court identificationsmade by the two tellers were the products of pretrial misidentification.2 Thebank surveillance photographs were of such quality that the defense was able toargue to the jury that an examination of the film would prove that the thirdbank robber was not Robinson. The testimony of Tate, who agreed to testify onthe eve of the second trial, was subject to attack on the ground that it was theproduct of a "deal" with the government.3

It was entirely proper for Robinson to disprove the government's contention by

proving that the third man was someone else. 1 J. Wigmore, Evidence 34 (3ded. 1940) (hereinafter cited as Wigmore); 2 Wigmore 413. If it was, thenobviously Robinson was innocent. Evidence to the effect that the third man in

the bank resembled an individual suspected of two armed robberies that

occurred in the Bridgeport area within six days prior to the bank robbery wasclearly probative of the issue Robinson sought to prove, namely, that the thirdman was someone else.8

The reasons given by Judge Zampano for the exclusion of this evidence werebased upon his desire to avoid repetitive opinion testimony by witnesses forboth the prosecution and the defense concerning whether or not Robinsonresembled the individual in the bank surveillance photographs. This concernwas, of course, legitimate.4 The jury could look at the pictures and look atRobinson and decide that issue for itself. The Advisory Committee Notes toFed.R.Evid. 701 indicate that if "attempts are made to introduce meaninglessassertions which amount to little more than choosing up sides, exclusion forlack of helpfulness is called for by the rule." However, the Maher/Fabrizitestimony had a different purpose. Maher was going to testify about theresemblance of the individual in the picture to Turner, not Robinson. Turnerwas not before the court, and he could not have been brought to court becausehe was still at large. The comparison that Maher was going to make was onewhich the jury could not have made for itself, so his testimony did not sufferfrom a "lack of helpfulness." The reasons given by Judge Zampano for theexclusion of the Maher/Fabrizi testimony simply do not justify his evidentiaryruling.

The government argues that opinion testimony based on only general features isinadmissible, particularly when the opinion comes from a lay witness. Evenassuming the correctness of that proposition, see note 2 supra, we cannot agreethat it is dispositive on the facts of this case. As indicated above, Maher wasnot going to testify about the defendant, he was going to testify about anotherindividual. His opinion was "rationally based on (his) perception" because hehad seen Turner, and it was "helpful to . . . the determination of a fact in issue"because Turner was unavailable. Therefore, his opinion was admissible underRule 701, and it would not have been "objectionable because it embrace(d) anultimate issue to be decided by the trier of fact." Fed.R.Evid. 704. We cannotagree with the government that Maher's testimony amounted to "meaninglessassertions which amount to little more than choosing up sides." AdvisoryCommittee Notes to Rule 701. On the contrary, it was testimony from adisinterested government official that bore directly on the principal issue in thecase, namely, the identity of the third man in the bank.

II. Unemployment Records

10

Joseph Burroughs testified that he had been with Robinson on the day of the

bank robbery. He said that he remembered the date because he had picked upan unemployment check on that day. The government sought to discreditBurroughs' testimony by proving that he had not received an unemploymentcheck on the day of the robbery. Walter Glennon, an employee of theConnecticut Labor Department, testified, on the basis of certain records fromthe Labor Department, that Burroughs had received no unemployment checksbetween February 10 and August 4, 1975. That testimony and the records onwhich it was based were admitted over the objection of defense counsel.11

It was of course proper for the government to try to impeach Burroughs'

testimony by proving that he had not received a check on the day of the bankrobbery, and it was also proper for the government to prove non-receipt byproving that there was an absence of any record indicating receipt. UnitedStates v. DeGeorgia, 420 F.2d 889 (5th Cir. 1969); McCormick, Evidence 307, at 722 (2d ed. 1972); 5 Wigmore 1531, 1556, 1633(6), 1678(7). Theabsence of a record of an event which would ordinarily be recorded gives riseto a legitimate negative inference that the event did not occur. Fed.R.Evid.803(10) creates an exception to the hearsay rule specifically designed to coverthe situation presented here:

12 following are not excluded by the hearsay rule, even though the declarant isTheavailable as a witness:13 Absence of public record or entry. To prove the . . . nonoccurrence . . . of a(10)matter of which a record . . . was regularly made and preserved . . . evidence in theform of a certification in accordance with Rule 902 (self-authentication), ortestimony, that diligent search failed to disclose the record . . . .14

Thus, if Glennon had merely testified that his agency regularly made andpreserved records of unemployment payments and that a diligent search ofthose records failed to disclose any record of a payment to Burroughs on theday of the robbery, then the government would have made its point. There issome indication in the record that the individual who actually conducted therecords search, and who gave the records to Glennon, had concluded that therecords were "confused" and "indefinite," and was of the opinion that "(a)lthough there are no records of payments this doesn't mean that no paymentswere made." That evidence was properly excluded by the trial judge.5 Itperhaps explains, however, why the government chose to use Glennon as awitness instead of the person who actually made the search, and why thegovernment approached this issue in the fashion that it did, instead of using thesimple procedure approved by Rule 803(10).

15

The records that were given to Glennon, and upon which Glennon based his

15

The records that were given to Glennon, and upon which Glennon based hisopinion, did not affirmatively state that Burroughs had not received a check onthe day of the robbery. They merely indicated that checks had been received oncertain dates, and the date of the bank robbery was not one of those dates. Thus,Glennon's testimony was based upon the negative inference that, since therecords in his possession contained no record of payment, no payment had beenmade. Glennon testified, however, that the records he had been given wereincomplete, and he said the records had merely been presented to him "as(Burroughs') records for unemployment." He gave no testimony at allconcerning the manner in which the search was made or whether a search wasmade of all of Burroughs' records or whether the search was diligent.Moreover, he testified that certain records, including cancelled checks, checkvouchers and claims presented by applicants when payments are made, werenot in the file he brought to court.

16

Judge Zampano decided to allow Glennon to testify on the basis of the

incomplete file, and he explained to defense counsel that the trustworthiness ofthe records was a question of weight for the jury which the defense would bepermitted to explore on cross-examination. This was error. Evidence that isotherwise admissible under an exception to the hearsay rule is admissibleprimarily because evidence of that kind is generally trustworthy, but if, in aparticular instance, the circumstances indicate a lack of trustworthiness, theevidence should be excluded. See United States v. DeGeorgia, 420 F.2d 889,895-96 (5th Cir. 1969), (Ely, J., concurring). The question of trustworthiness isa crucial threshold issue of law going to admissibility, and it must be resolvedfirst by the trial judge before it becomes a question of weight for the jury.

17

Trustworthiness, in this context, relates to the thoroughness or diligence of the

records search. Compare Fed.R.Evid. 803(7) with Fed.R.Evid. 803(10). Ithardly requires extended discussion to demonstrate that a casual or partialsearch cannot justify the conclusion that there was no record. Although thepossibility that the Labor Department records in Glennon's possession failed toreflect a payment actually made may have been small, the damage caused byan error, i. e., the impeachment of Robinson's only alibi witness, far outweighsthe possible inconvenience of conducting the diligent search anticipated byRule 803(10).

18

Rule 803(10) makes evidence based upon a diligent search admissible withoutspecifically making evidence based upon a search that is less than diligentinadmissible. It may be, therefore, that evidence of the latter sort should notnecessarily be inadmissible. The Federal Rules of Evidence were not, of course,designed to render the law of evidence intransmutable. Indeed, Fed.R.Evid. 102

directs that the rules be construed so as to promote the "growth and

development of the law of evidence to the end that the truth may be ascertainedand proceedings justly determined." Diligence is the standard set by Rule803(10),6 however, and it is a good one. It insures that evidence of this kindwill be reliable, and reliability is the foundation upon which all exceptions tothe hearsay rule are built. Accordingly, we decline to enlarge the exceptioncreated by Rule 803(10) and hold that proof of a search that has been less thandiligent is inadmissible to prove the absence of a record.III. Prejudice19

Defense counsel duly objected to the admission of the Glennon testimony, and,although his offer of proof with respect to the Maher/Fabrizi testimony was notmade until the day after Maher's testimony was excluded, the delay was due tothe fact that counsel did not wish to make the offer with the jury present. JudgeZampano properly treated the offer as having been timely made. The onlyremaining question, therefore, is whether the trial court's erroneous rulingsaffected a substantial right of the defendant. Fed.R.Evid. 103(a). We hold thatthey did.

20

The Maher/Fabrizi testimony alone could have created a substantial doubt in

the minds of the jurors.7 The impact of the erroneous exclusion was aggravatedby the fact that the government objected to Maher's testimony immediatelyafter Maher testified that he and his staff at the Bridgeport jail had examinedtheir photo files and concluded that the man in the bank surveillancephotograph resembled "him," but before Maher was able to explain that "him"was Turner, an individual about whom the jury knew nothing. Therefore,Maher's testimony, instead of benefiting the defense, may well have left thejury with the impression that "him" was Robinson and that Robinson wasknown to the Bridgeport correctional authorities. Considering the effect theMaher/Fabrizi testimony might have had, and the point of interruption, it isclear that the exclusion of that testimony severely prejudiced Robinson's alibidefense.

21

The admission of Glennon's testimony also prejudiced the defendant.

Burroughs was Robinson's only alibi witness, and the link that connected thealibi with the day of the robbery was Burroughs' receipt of an unemploymentcheck. By impeaching Burroughs with respect to the unemployment check, thegovernment cut the heart out of Robinson's alibi. There is, of course, nothingwrong with that, as long as it is done with admissible evidence. Here it was not.When a defendant's alibi is destroyed, and inadmissible hearsay is theinstrument of destruction, it is beyond dispute that a substantial right of the

Reversed and remanded.

Tate pled guilty to violating 18 U.S.C. 2113(b). After Robinson's first trial,Tate was given a sentence of ten years, the maximum under 2113(b)

Robinson concedes that the identification procedures were insufficiently

suggestive to warrant the suppression of the tellers' identifications as a matterof law. He assigns as error, however, the trial judge's refusal to give certain juryinstructions based on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19L.Ed.2d 1247 (1968). Whether a failure to give such an instruction constitutesreversible error depends on the circumstances. United States v. Fernandez, 456F.2d 638, 644 (2d Cir. 1972). In view of our disposition of this case, we neednot decide whether the failure to give the requested charge was error

Shortly after the first trial, Tate was called before a Grand Jury, grantedimmunity and eventually adjudged in contempt when he refused to testify. Hewas committed to custody for the life of the Grand Jury and he faced theprospect of future commitments if he persisted in refusing to testify beforefuture Grand Juries. Under the terms of his sentence for contempt, Tate'ssentence for bank robbery was not to begin until after his sentence for contemptexpired. By testifying at the second trial, Tate purged himself of contempt, andthe government agreed not to oppose his motion for a reduction in sentence. Hissentence under 18 U.S.C. 2113(b) was subsequently reduced to six years

We note that the first time anyone offered evidence of that kind was at the firsttrial when, over the objection of defense counsel, the government introducedthe testimony of a Bridgeport police officer who said that he recognized theindividual in one of the bank surveillance photographs as Robinson. Thegovernment's argument at the first trial, of course, was somewhat different fromthe one they advance on this appeal. Nevertheless, we are inclined to agreewith the government that, despite the broad language of Fed.R.Evid. 701, it isnot improper to exclude the testimony of lay witnesses asked to render anopinion whether the individual in a bank photograph is the defendant. Ouragreement with that abstract proposition does not help the government,however, for it is inapplicable to the facts of this case

The person who actually made the search was William Kegler of the StateLabor Department. Robinson's investigator, Robert E. Porter, interviewed

Kegler and prepared a memorandum indicating that Kegler had expressed theopinions quoted above. During the cross-examination of Glennon, defensecounsel asked whether Kegler had expressed those opinions to Glennon.Glennon said that he and Kegler had not discussed the matter. After Glennontestified, defense counsel sought a continuance for the purpose of bringingKegler into court. Counsel explained that Kegler was not under subpoenabecause the defense had expected Kegler to be the government's witness. Whenthe request for a continuance was denied, defense counsel sought to introducetestimony from Porter. That testimony was properly excluded as hearsay.Robinson assigns the denial of a continuance as error. Because we hold thatGlennon's testimony was inadmissible, we need not reach that question6

See also 5 Wigmore 1678(7)

During the first trial, after which the jury was unable to reach a verdict, thissame evidence was elicited through a different witness, over the government'sobjection